Ponamma v. State of Kerala and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TUESDAY, THE 20[TH] DAY OF JUNE 2023 / 30TH JYAISHTA, 1945`** ``` CRL.MCNO.7576OF2017 ORDERDATED22.07.2017INC.M.PNO.1210/2014INCC1279/2015OF JUDICIALMAGISTRATEOFFIRSTCLASS-I,HARIPAD ``` ## **`PETITIONER/RESPONDENT/ACCUSED:`** ``` PONNAMMA W/OJAYACHANDRAN,KOMALEZHATHU KOIKKAL,PERINGALA.P.O,KAYAMKULAM-690559. ``` ``` BYADVSMT.SHAHNAKARTHIKEYAN ``` ## **`RESPONDENTS/PETITIONER/COMPLAINANT:`** ``` 1STATEOFKERALA REPRESENTEDBYTHEPUBLICPROSECUTOR,HIGHCOURTOF KERALA,ERNAKULAM-682031. ``` ``` 2KRISHNAKUMARI W/O.BABUJANARDHANAN,ALUMMOOTTIL PADEETTATHIL,MUTTAMMURI,CHEPPAD,ALAPPUZHA-690507. ``` ``` *CORRECTEDANDSUBSTITUTEDAS ``` ``` BABUJANARDHANAN,ALUMMOOTTIL,PADEETTATHIL, MUTTAMMURI,CHEPPAD,ALAPPUZHA-690507.REPRESENTEDBY POWEROFATTORNEYHOLDERKRISHNAKUMARI(W/O.BABU JANARDHANAN) ``` ``` *CORRECTEDASPERORDERDATED10.04.2023INCRL.M.A NO.1OF2023INCRL.M.CNO.7576OF2017. ``` ``` BYADVS. SRI.B.MOHANLAL JaniA ``` ``` SRI.MPPRASHANTH,PUBLICPROSECUTOR ``` ``` THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSIONON 20.06.2023,THECOURTONTHESAMEDAYPASSEDTHEFOLLOWING: ``` Crl.M.C No.7576/2017 2 ## **ORDER** This petition is filed under Section 482 of the Code of Criminal Procedure to quash the order dated July 22, 2017 in C.M.P. No. 1210 of 2014 in C.C. No. 1279 of 2015 on the file of the Judicial Magistrate of the First Class-I, Haripad. By the said order, the learned Magistrate permitted the de facto complainant to amend the date of borrowal of amount from June 3, 2010 to June 1, 2010. 2. Short facts are as under: The party respondent is the de facto complainant in a proceeding initiated under the Negotiable Instruments Act. The petitioner is the accused. The complainant alleged that she borrowed certain sums on 3.6.2010 and issued a cheque dated 5.9.2010 in discharge of the said liability. When the cheque was presented for payment, it was dishonored due to insufficient funds. The complaint was consequently lodged. 3. During the pendency of the proceedings before the learned Magistrate, the complainant filed an application seeking amendment of the complaint. Her prayer was to correct the averment in the complaint that the amount was borrowed on 1.6.2020 instead of 3.6.2020 as originally stated in Crl.M.C No.7576/2017 3 the complaint. 4. Though an objection was filed, the learned Magistrate relying on the law laid down in **S.R. Sukumar v S Sunaad Raghuram** [(2015) 9 SCC 609] proceeded to allow the application. The said order is under challenge. 5. Smt. Shahna Karthikeyan, the learned counsel appearing for the petitioner, submitted that the order passed by the learned Magistrate cannot be sustained under law. According to the learned counsel, the complainant had earlier filed a civil suit to recover the amount and in the plaint, the specific averment was that the amount was borrowed on 1.6.2020. It is to ensure that the pleadings in the criminal complaint and the civil suit tally that an attempt is being made to correct the entries in the complaint. The learned counsel submitted that there is no provision in the Code for amendment of a complaint, and hence the learned Magistrate was not justified in allowing the same. She also submitted that the contention of the de facto complainant that the error is merely clerical cannot be sustained as the application for amendment was filed at a belated stage. 6. The learned counsel appearing for the respondent submitted that the submissions advanced by the learned counsel for the petitioner cannot be accepted. Placing reliance on the law laid down by this Court in **Hafsa Rahman T v. State of Kerala and Others** [2017 (3) KHC 49], it is urged Crl.M.C No.7576/2017 4 that when a complainant does not seek to incorporate a new plea but only to correct a typographical error or a clerical mistake, such correction can be allowed as no prejudice is likely to be caused to the accused. 7. I have considered the submissions advanced. 8. The issue raised in this petition is no longer res integra. In **S.R.Sukumar** (supra), the Apex Court had occasion to hold as follows 18. Insofar as merits of the contention regarding allowing of amendment application is concerned, it is true that there is no specific provision in the Code to amend either a complaint or a petition filed under the provisions of the Code, but the courts have held that the petitions seeking such amendment to correct curable infirmities can be allowed even in respect of complaints. In U.P. Pollution Control Board v. Modi Distillery wherein the name of the company was wrongly mentioned in the complaint, that is, instead of Modi Industries Ltd. the name of the company was mentioned as Modi Distillery and the name was sought to be amended. In such factual background, this Court has held as follows: (SCC pp. 659-60, para 6) “6. …The learned Single Judge has focussed his attention only on the technical flaw in the complaint and has failed to comprehend that the flaw had occurred due to the recalcitrant attitude of Modi Distillery and furthermore the infirmity is one which could be easily removed by having the matter remitted to the Chief Judicial Magistrate with a direction to call upon the appellant to make the formal amendments to the averments contained in Para 2 of the complaint so as to Crl.M.C No.7576/2017 5 make the controlling company of the industrial unit figure as the accused concerned in the complaint. All that has to be done is the making of a formal application for amendment by the appellant for leave to amend by substituting the name of Modi Industries Limited, the company owning the industrial unit, in place of Modi Distillery. … Furthermore, the legal infirmity is of such a nature which could be easily cured.” 19. What is discernible from U.P. Pollution Control Board case is that an easily curable legal infirmity could be cured by means of a formal application for amendment. If the amendment sought to be made relates to a simple infirmity which is curable by means of a formal amendment and by allowing such amendment, no prejudice could be caused to the other side, notwithstanding the fact that there is no enabling provision in the Code for entertaining such amendment, the court may permit such an amendment to be made. On the contrary, if the amendment sought to be made in the complaint does not relate either to a curable infirmity or the same cannot be corrected by a formal amendment or if there is likelihood of prejudice to the other side, then the court shall not allow such amendment in the complaint. 20. In the instant case, the amendment application was filed on 24-5-2007 to carry out the amendment by adding Paras 11(a) and 11(b). Though, the proposed amendment was not a formal amendment, but a substantial one, the Magistrate allowed the amendment application mainly on the ground that no cognizance was taken of the complaint before the disposal of amendment application. Firstly, the Magistrate was yet to apply the judicial mind Crl.M.C No.7576/2017 6 to the contents of the complaint and had not taken cognizance of the matter. Secondly, since summons was yet to be ordered to be issued to the accused, no prejudice would be caused to the accused. Thirdly, the amendment did not change the original nature of the complaint being one for defamation. Fourthly, the publication of poem Khalnayakaru being in the nature of subsequent event created a new cause of action in favour of the respondent which could have been prosecuted by the respondent by filing a separate complaint and therefore, to avoid multiplicity of proceedings, the trial court allowed the amendment application. Considering these factors which weighed in the mind of the courts below, in our view, the High Court rightly declined to interfere with the order passed by the Magistrate allowing the amendment application and the impugned order does not suffer from any serious infirmity warranting interference in exercise of jurisdiction under Article 136 of the Constitution.’ It was held that an easily curable legal infirmity could be cured by means of a formal application for amendment, and if the amendment sought to be made relates to a simple infirmity that is curable by means of a formal amendment and by allowing such amendment, no prejudice could be caused to the other side notwithstanding the fact that there is no enabling provision in the Code for entertaining such amendment, the court may permit such an amendment to be made. 9. The very same view was taken by this Court in **Hafsa** (supra). In the Crl.M.C No.7576/2017 7 case on hand, the prayer is to correct the date of transaction from 3.06.2010 to 1.06.2010. The recording of the evidence has not yet commenced. It cannot be said that any serious prejudice would be caused by allowing the amendment. The attempt of the complainant is not to incorporate a new plea or to change the nature of the complaint. In that view of the matter, I find no reason to interfere with the impugned order. This petition is dismissed. Sd/- **RAJA VIJAYARAGHAVAN V, JUDGE** IAP Crl.M.C No.7576/2017 8 ## **`APPENDIX OF CRL.MC 7576/2017`** ``` PETITIONER’SANNEXURES: ``` ``` ANNEXUREITRUECOPYOFTHENOTICEDATED16/11/2010 CAUSEDBYTHERESPONDENTTOTHE PETITIONER ANNEXUREIITRUECOPYOFTHEREPLYDATED9/12/2010 CAUSEDBYTHEPETITIONERTOTHE RESPONDENT ANNEXUREIIICERTIFIEDCOPYOFTHECOMPLAINTIN CMP.NO./2010INCC.NO.1279/2015 ANNEXUREIVTRUECOPYOFTHEAMENDMENTAPPLICATION FILEDBYTHERESPONDENTAS C.M.P.NO.875/2012 ANNEXUREVTRUECOPYOFTHEOBJECTIONFILEDBYTHE PETITIONERINC.M.P.NO.1210/2014 ANNEXUREVICERTIFIEDCOPYOFTHEORDERDATED 22/7/2017INC.M.P.NO.1210/2014PASSEDBY JFMC-1,HARIPAD. AnnexureACERTIFIEDCOPYOFCORRECTEDORDERDATED 22.07.2017INCMPNO.1210/2014INC.C. NO.1279/2015 ```